partially concurring and partially dissenting.
As I read the appellants’ brief, they do not question the propriety of permitting appellee, as the owner of the casing, to recover compensation for the use thereof by others. They assert very broadly that the award of damages against them is contrary to and not supported by the evidence, and is speculative and inequitable. Insofar as they raise questions concerning the amount of pipe that was recoverable, the condition thereof, value thereof and the value of the use thereof, I think they run into the old and settled proposition that this court will not act as a trier of the fact, and their contentions must be denied.
Insofar as they argue that it was error for the court to proceed to assess the rental value in the absence of other lease-hold and working-interest owners, considered by them to be indispensable parties, I cannot agree that those other owners are persons “without whose presence before the court a final decree could not be made without either affecting [their] interest or leaving the controversy in such a condition that its final determination might be wholly inconsistent with equity and good conscience.” Amerada Petroleum Corporation v. Rio Oil Company, 225 F.Supp. 907, 910 (D.C.Wyo.1964). I think that the trial court’s decision, affirmed by the majority, reaches a decision that has a favorable effect on the absent parties’ interest in that they are not charged with the burden of the use of the equipment which was for their benefit proportionately with that received by appellants. But this does not result from the absence of those parties. This then justifies appellants’ argument that it is inequitable to assess them with 100% of the rental. They can be protected by requiring a proper apportionment of the rental to the interests of the parties. I would assess Bradley with 55% of the rental value and Champion Yen-*836tures with 10%, leaving Dunn to seek whatever remedy might be available to him as against the owners of the other 35% interest.
My examination of the record has disclosed nothing that permits me to conclude that either Champion Ventures under its operating agreements with all of the lessees, or Bradley as its designated operator, agreed with Dunn expressly or by factual implication to pay the latter anything for the use of the casing. The original dispute involved the right of Dunn to remove the casing. Our previous judgment holds only that Champion and Bradley were not guilty of conversion in preventing the removal of the pipe.
The majority may have deemed it unnecessary to point out upon what legal theory liability for use of casing belonging to another is imposed. Okmulgee Supply Corporation v. Anthis, 189 Okl. 139, 114 P.2d 451, reh. den., (1941), cited in our earlier opinion in this case, 567 P.2d 724, 728, and in the majority herein, sustained the imposition of a rental value against the successor lessee (taking over the operation at the well and using well equipment which had been separately sold) as “an attempt to do equity.” There has been no agreement therefor and the facts were not such as to justify a finding of a contract implied in fact, but the lessee against whom the charge was imposed had not appealed. The case of Eubank v. Twin Mountain Oil Corporation, Tex.Civ.App., 406 S.W.2d 789, reh. den., (1966), likewise cited in the majority opinion, permitted Eubank, who had placed casing in the well under a lease which subsequently terminated, to recover the value of that casing from Twin Mountain, a new lessee who in the course of the action was granted an injunction against the removal of the casing. The court held that the “owner of casing under such circumstances is entitled to be compensated for the reasonable value thereof.” In effect the court thereby made its own sale of the casing from the lessee who had installed the same to the subsequent lessee. There was no evidence of an express or implied agreement, but again the involuntary vendee had not disputed the court’s action.
It appears to me that what the court has done in each of these cited cases is to judicially impose either a contract of lease or a contract of sale where neither of the parties had intended to enter into any such agreement. Here, the term “constructive lease,” as used by Mr. Justice Thomas in his concurring opinion in the earlier case, appealed to the district judge and he found a constructive lease to be present. I have found no authorities discussing constructive leases but in 17 C.J.S. Contracts, § 6, pp. 566-570, I find reference to constructive contracts. Since a lease is a form of contract I consider this quotation pertinent:
“Contracts implied in law, or, as stated supra § 4, more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on a legal fiction and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contract, but from the law or natural equity. The courts employ the fiction of quasi or constructive contract with caution.”
The constructive-lease theory used in this case, then, represents an obligation imposed by the court, on the ground that it is dictated by reason and justice and not by reason of the agreements, express or implied, between Dunn on the one hand and Champion Ventures and Bradley on the other. The text just quoted makes this further observation (pp. 570-572):
“Generally, quasi or constructive contracts rest on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another, and on the principle that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do. * * *
* * * * * *
*837“The essential elements of quasi contract are a benefit conferred on the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of the value thereof.”
The principles pertaining to quasi contracts were discussed by this court in Roberts v. Roberts, 64 Wyo. 433, 196 P.2d 361, 367 (1948), which quotes from Keener on Quasi-Contracts, p. 19:
“ ‘By far the most important and most numerous illustrations of the scope of quasi-contract are found in those cases where the plaintiff’s right to recover rests upon the doctrine that a man shall not be allowed to enrich himself unjustly at the expense of another.’ ”
It is established by our former opinion that Champion and Bradley were guilty of no conversion in refusing to permit the removal of the pipe. From the evidence upon both hearings it seems readily apparent that they have received or expect to receive a benefit from the use of the pipe. That benefit would seem to me to be proportional to the amount of interest they have in the lease or in the operation thereof. Bradley has 55% and Champion has 10%, and I therefore concede that each may properly be liable to compensate plaintiff to that extent. But under what possible theory can it be said that they have received 100% of the benefit, that they have been unjustly enriched to the full extent of the rental value of the casing? The use of the casing is for the benefit of all the lessees. It may well turn out to be the case that no benefit will be received by anyone if the well should actually prove unproductive in a commercial sense, but whatever the outcome of the well, I fail to see where Champion and Bradley have been enriched beyond their percentage interest in the lease. Under the principles of constructive contract (lease) then, I see no basis upon which to assess them with the whole rental cost of the casing. I therefore dissent as to the imposition of any more than 10% and 55%, respectively, against them.